According latest newsreports and blogs, China is considering imposing a carbon tax. A Washington Post blog provides an overview of the tax and its implications here. If China succeeds in imposing the carbon tax, it will be an important first step to achieve emissions reduction in one of the world's largest emitting nations. The question is what the implication of this action will be for the successor treaty to the Kyoto Protocol?

President Obama in his State of the Union address appeared to lean towards a cap and trade regime, given his reference to the McCain-Lieberman Bill. This preference means that the United States government may pursue a cap and trade option over a carbon tax. Whether one is better than the other is an ongoing debate.

The critical issue is how, if at all, the difference in the choice pursued by these countries will affect a future international climate treaty. On a positive note, steps taken by the two major emitters and economic powers could lead to much needed consensus on international action. However, it could also mean that the two major emitters may differ on the future of the Kyoto Protocol emissions trading system.

On the one hand, a change to the central architecture of the Kyoto Protocol could spell further disagreement and probably the disintergration of the Kyoto Protocol. On the other hand, it could usher a welcome change to the architecture of the Kyoto Protocol, which has presented several challenges since its inception. It may perhaps help begin a dialogue for an alternative and much more flexible framework for achieving emissions reduction.

"California in the Spotlight: Successes and Challenges in Climate Change Law"

Proposals due: Monday, March 25, 2013

On Friday, November 8, 2013, the University of San Diego School of Law will host its Fifth Annual Climate & Energy Law Symposium. With this Call for Proposals, you are invited to submit the title and abstract of an article that you would be able to present at the Symposium and publish in the fifth volume of the San Diego Journal of Climate & Energy Law. If your proposal is selected, all your expenses to attend the Symposium would be paid, and your completed article would be due to the Journal’s editors by Monday, December 16, 2013. The agendas and webcasts of past symposia are available here.

The theme of our 2013 Climate & Energy Law Symposium is “California in the Spotlight: Successes and Challenges in Climate Change Law.” Among U.S. states, California has pursued the most comprehensive and ambitious approach to reducing greenhouse gas emissions. California’s approach is multi-sectoral, with laws designed to transform not just electricity generation but also transportation, industry, and land use. Also, California has embraced regulatory innovation through a robust combination of market and non-market based regulatory instruments.

At the University of San Diego’s Fifth Annual Climate & Energy Law Symposium, academic and policy experts will analyze and assess three core aspects of California’s approach to climate change mitigation. First, California has implemented an economy-wide cap-and-trade program. How well does cap and trade work? What are its weaknesses and strengths in comparison to alternative emissions reduction policies? Should it be a regulatory instrument of choice for other states and countries? Second, California is aggressively pursuing emissions reductions in the transportation sector. What is the outlook for zero emission vehicles and the policies to promote them? Should the state’s low-carbon fuel standard survive judicial scrutiny? What prospects remain for a national low-carbon fuel standard? Third, California remains a leader in promoting low-carbon electricity, particularly solar electricity. How have the state’s utilities complied with the Renewable Portfolio Standard requiring that they source 33% of their electricity from renewable sources by 2020? What are the arguments for and against national policies that mandate such goals? What other state, national, and international policies should be implemented to promote low-carbon electricity?

All article proposals related to these broad issues in climate change mitigation are welcome. It is not necessary for an article to focus specifically on California law and policy. If you are interested in participating, please submit the following to Joshua Dennis, editor-in-chief of the San Diego Journal of Climate & Energy Law, at jdennis@sandiego.edu:

(1) The proposed title of your article and a one- to three-paragraph abstract;

(2) A link to or copy of your CV; and

(3) Confirmation that you would be available to attend the Symposium on Friday, November 8, 2013, and that you can commit to submitting a complete draft of your associated article for publication to the San Diego Journal of Climate & Energy Law by Monday, December 16, 2013.

Proposals should be submitted by Monday, March 25, 2013. We look forward to hearing from you!

Sustainability is a concept or goal to
guide decision making at the intersection among the social and economic
components of the human system and the environment.

Unlike sustainability, resilience is
an inherent property of a system. It is
the degree to which a system maintains the same structure and function in the
face of change or a perturbation.

Unlike sustainability, resilience as a
general concept is value neutral. A
system may be highly resilient either because it is quite adaptable (latitude)
or quite resistant to change (resistance).

Thus, an overgrazed field taken over
by invasive weeds may be resistant to returning to its original state when
livestock are removed – it is therefore resilient but not necessarily something
we label as good.

A brutal military dictatorship may be
highly resistant to change -- it is therefore resilient but not necessarily
something we label as good.

Thus it is common to talk about
resilience in the context of societal goals such as sustainability or the
maintenance of ecosystem function. What
resilience brings to the discussion is a deeper understanding of how to adjust
our actions in a complex system to achieve these goals.

In my former life as a scientist, it
was always what happens at the boundaries of two systems that interested me –
in science it was the boundary between physical systems, now it is the boundary
between schools of thought – it is what led me to interdisciplinary research.

In physical chemistry I studied the
laws of thermodynamics applicable to ideal systems and I loved their simplicity
and predictive capability. But as a
researcher in geochemistry, I studied a system in which the temperatures had
been warm enough to cause mineral composition to change when seawater and rock
interacted, but too slowly to reach equilibrium. You might predict that the results would plot
on a continuum from the original state to the new equilibrium state. You would be wrong. The same discrete intermediate stage occurred
over and over again.

We see this in other complex systems. Consider a river – on the one hand you can
study and model fluid flow, on the other hand you can describe the properties
of the river bed. But put them together
and you have a boundary condition. The
entire behavior of the new system is defined by how the water and stream bed
interact. And that interaction is not
random chaos. Rivers persist in certain
forms that are empirically predictable.

Understand quantum physics and
thermodynamics and you will never predict life.
Evolution is our current way of understanding the change of one life
form to another, yet despite our search for a continuum in the fossil record,
there appear to be discrete steps. One
aspect of resilience scholarship is the recognition that systems are
self-organizing. Thus a system that
crosses a threshold, will reorganize in another discrete state. It may or may not be a state that we value.

The danger of goals like sustainability
without integration with a concept like resilience that relates to both the
properties and processes within the relevant system is that the failure to
account for complexity may lead to system collapse. For example: Consider what are referred to as
the 4 R’s of sustainability: re-duce, re-use, re-cycle, -re-claim. While they sound good, optimization of
resource exploitation through ever increasing efficiency can move the system
precariously close to a threshold. Thus
a social-ecological system relying on a water source that is developed to the
maximum level of efficiency is highly susceptible to collapse in the face of
disaster and crisis such as increasing prolonged drought resulting from climate
change.

My own work is premised on the
hypothesis that by consideration of governance through the lens of resilience we
can define certain criteria that facilitate adaptability and legitimacy and are
transferrable to multiple systems at multiple scales. I will briefly describe three projects:

1. On
the problem of disaster and crisis or simply, change: we are looking at a simple process of mapping
the scale at which particular ecosystem services function in comparison to
scale of governance in the context of river basins, then identifying potential
thresholds that may be reached due to external environmental and social drivers
such as climate change, nutrient cycles, population, the economy, and institutions. Preliminary work shows at least 2 outcomes:

When we replace a
service provided by the ecosystem with an engineered service, we tend to move
up a scale in both the governance and the physical system. This is because we tend to engineer
complexity out of the system – replacing the function of the floodplain with
dams and levees for example.

This reduces our
ability to adapt in the face of external drivers

2. On
the problem of – just because science says it is the right thing to do, does
not mean society will do it. For this I have been looking at the work of
scholars more adept than I on the concept of legitimacy which considers: how
persuasive are the decisions made by our leaders – are their actions justified
(normative) and do we perceive them as justified (popular). I use legitimacy specifically in the context
of the actions of administrative agencies.
One of the outcomes is that by looking at decision-making through the
lens of resilience, process matters – it is not enough to use good science. My work looks at the use of local knowledge
and capacity building to facilitate local deliberation and innovation; the use
of negotiated time frames for adjustment to allow stability while enhancing
flexibility; the use of goal setting and monitoring to enhance accountability;
and the use of networks to bridge between scales and entities with fragmented
jurisdictional authority.

3. Finally,
a project in the funding proposal stage would bring together legal and
resilience scholars, political scientists and ecologists to integrate the work
from the first two projects into a set of criteria for adaptive governance to
achieve social-ecological resilience.

Conclusion:

I am enough of a student of the
history of science that I don’t believe resilience is the end point of that
understanding, but it gives us a way to better align our behavior in the social
system with how changes are occurring in the ecological system and to begin to
make at least empirical sense out of the feedbacks between the two – generally
the precursor to great leaps in thought.
All we are doing then is setting things up for the next generation to
make that leap to the theories to describe the complex behavior at the boundary
between social and ecological systems.

Professor Dworkin, Professor at NYU Law School and Professor Emeritus at University College London, passed away on February 15, 2013. The legal world has lost a giant, but his work endures.

I was first introduced to Professor Dworkin's work as part of my mandatory jurisprudence course, while studying law at the National Law School of India University. My professor, an avid follower of Professor H.L.A.Hart, nevertheless introduced us to Professor Dworkin's work, leaving us to be judges of which philosophy was more persuasive. Honestly, it was not a task that many of us were prepared to undertake at that point.

However, over the years, I have come to appreciate the short introduction to legal philosophy and to the works of keen jurists such as Professor Dworkin. While far from fully understanding the sophistication of all his arguments, his core philosophy that law and morality are reconcilable resonate strongly now.

While thinking about his work, I reverted back to one of the first articles of Professor Dworkin that I attempted to read in a thick hardbound copy of the Harvard Law Review years back--Hard Cases (88 Harv. L. Rev. 1057 (1975)). While the Westlaw version is less thicker and more accessible, the contents remain breathtakingly broad-ranging and complex. Nevertheless, as I read through it, I am reminded of one "hard case" that is out there pending adjudication--the matter of climate torts.

I would be lying if I said that by reading Professor Dworkin's essay, I have come up with a philosophical framework for addressing climate torts. However, it may be an interesting project to go through the essay in search of a meaningful framework by which we can think through the hard case of climate change. For now, let me say that I have found one starting point in this sentence explaining his core thesis in the essay:

"I propose,..., the thesis that judicial decisions in civil cases, even in hard cases..., characteristically are and should be generated by principle not policy." (p. 1060).

The question then is, when we are dealing with hard civil cases such as climate change, where a decision will have global impacts, what is the principle that judges should pursue? Perhaps, I will have some thoughts after I have carefully read Professor Dworkin's essay again.

Today, Friday, February 15, 2013, the University of Utah S.J. Quinney College of Law is hosting its third annual academic conference. The topic is Perpetual Conservation Easements: What Have We Learned and Where Should We Go From Here?. Organized by Prof. Nancy McLaughlin, the event promises a fascinating deep dive into a complex and interesting topic.

Proposed Reforms - Roger Colinvaux, Associate Professor of Law, The Catholic University of America, Columbus School of Law; Former Counsel to the Joint Committee on Taxation

1:20 p.m.

State Enabling Statutes

History - K. King Burnett, Uniform Law Commissioner, Member of Uniform Conservation Easement Drafting Committee

Unintended Consequences of “Easement” Terminology - Michael Allan Wolf, Professor of Law and Richard E. Nelson Chair in Local Government Law, University of Florida Levin College of Law, University of Florida Levin College of Law; Editor of Powell on Real Property

Almost exactly one year ago, the Texas Supreme Court issued a decision that ranks—at least by the modest standards of groundwater litigation—as
a blockbuster. In Edwards
Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012), the
court held that landowners own property rights in groundwater beneath their
land, even before they pump that groundwater, and that restrictions on
groundwater use could create a taking.
This caused a stir among water lawyers.
The application of takings doctrine to surface water rights was already a hot topic, particularly
following the federal government’s defeat in Tulare Lake Basin Water Storage Authority v. United States, 49 Fed.
Cl. 313 (2001). Day provides a reminder that the water/takings battle also has a growing
subterranean front.

The Day decision inspired
me to see what other courts have had to say about takings claims involving
groundwater. The answer, it turns out, is quite a lot, and
the cases hold lessons for larger debates about water rights and
takings. Those cases and lessons, some
ideas for the future evolution of groundwater/takings law, and the reasons why
we should care all are summarized in greater detail here. The article is still a draft, and I welcome reader comments.

The Utah Law Review--the University of Utah S.J. Quinney College of Law's flagship publication--has announced that it will begin publishing an annual special issue on environmental, natural resources, and energy law. The issue will publish on a schedule opposite the Colorado Law Review's special natural resources law issue. The announcement and details are below:

The Utah Law Review is excited to announce the inaugural Environmental & Natural Resources Issue, to be published next winter, Utah Law Review, Vol. 2013, No. 6 (expected in print December 2013).

This new special winter issue, Issue 6 of each year’s Utah Law Review, replaces the Utah Environmental Law Review specialty journal. This robust issue will feature 4 to 6 scholarly works solicited through article selection, student works, and dynamic symposium pieces published in coordination with the Wallace Stegner Center for Land, Resources and the Environment. Published works will focus on significant issues in natural resources, energy, and environmental law and policy.

We look forward to working with scholars to publish pieces that illuminate the challenges and opportunities in this evolving and critically important field. While we will be selecting a majority of our articles through the spring article submission process, we also plan to reserve space for articles submitted in the fall submission season.

The University of Washington law school has issued a call for papers for its annual Young Environmental Law Scholars Workshop, a fantastically helpful and well-organized event. Details are below:

Call for PapersUW Young Environmental Law Scholars Annual Workshop
University of Washington School of Law
Seattle, Washington
July 10-12, 2013

The University of Washington is pleased to announce the 2nd Annual UW Young Environmental Law Scholars Workshop.
This collegial two-day workshop features discussion of works-in-progress by ten early career environmental law scholars: professors with two or fewer years of tenure, pre-tenure professors, visiting assistant professors, or legal fellows. We welcome submissions from the broad fields of environmental, natural resources, and energy law.

Participating junior scholars will be asked to submit an unpublished work-in-progress one month before the workshop. Each paper will be circulated to the entire group for review and assigned to one senior scholar and one junior scholar for detailed commentary. At the workshop, each paper will receive an hour of discussion: a brief presentation by the author, followed by detailed comments from the designated junior and senior scholars, and then a more general review by the group. The overall aims of this process are to promote scholarly discussion and to facilitate rigorous early review for works to be offered for publication in a law journal.

The senior scholars participating in this year’s workshop are:

Robert T. Anderson - Director, Native American Law Center, University of Washington

William H. Rodgers - Stimson Bullitt Professor of Environmental Law, University of Washington

1. California successfully defended a lawsuit by two environmental NGOS, which challenged its cap and trade program on the ground that emitters could by credit from entities that were not part of the program. A report of the news is available here.

2. New York Governor Cuomo has proposed that the government buy property in some coastal parts that were affected by Hurricane Sandy and preserve the floodprone area as undeveloped coastline. A newslink to the story is available here. Several residents welcome the proposal and the idea of preserving the area instead of re-building appears sound. The question, however, is whether the risk of building in flood prone areas should be borne by private property owners via insurance or by taxpayers. At the same time, given the scale of government response warranted in such instances, taxpayers may ultimately bear the burden in any case. It is a difficult question, which may only get more complex if extreme weather patterns increase.

3. The United States has filed a complaint against India before the WTO for imposing domestic content restrictions as part some of its program to promote solar energy. India is defending the program as a government procurement. A link to the news is available here.

Until the tsunami hit Fukushima, the future of nuclear energy appeared bright. Several nations were poised to expand their nuclear energy portfolio. Since the crisis in Japan, however, some countries have reversed their decision. Germany is a good example, as is Japan itself. Both nations are committed to increasing their renewable energy portfolio, instead. From an environmental perspective, particularly nuclear waste and water usage, this is a positive development.

But, not all nations are on board. Other countries, notably emerging economies such as China and India, are poised to expand their nuclear energy. So is the United States. What does this mean to the global environment?

At present, it appears to be a non-issue. But, let us consider a scenario where a few countries generate a substantial amount of nuclear energy. Where will their waste go? What will happen in case of a meltdown? If there is transboundary harm, who will bear the responsibility? These are be issues that require some forethought and may be a good reason to pursue a global regime for civilian nuclear energy. It may seem to be a far off problem, but as environmental history has shown, such problems tend to catch with us quickly, leaving little room for meaningful action.